State v. Graham

• Court: Ohio Court of Appeals
• Decided: May 26, 2026
• Docket: 1-25-41
• Status: Published

Opinion

[Cite as State v. Graham, 2026-Ohio-1924.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, CASE NO. 1-25-41 PLAINTIFF-APPELLEE,

v.

DEDRIC V. GRAHAM, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2024 0222

Judgment Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Decision: May 26, 2026

APPEARANCES:

Andrew Ray for Appellant

John R. Willamowski, Jr. for Appellee Case No. 1-25-41

WALDICK, J.

{¶1} Defendant-appellant, Dedric Graham (“Graham”), appeals the

judgment of conviction and sentence entered against him in the Allen County Court

of Common Pleas, following a jury trial in which Graham was found guilty on all

counts of an 11-count indictment charging various sex offenses against a minor

victim. For the reasons set forth below, we affirm in part and reverse in part.

Procedural History

{¶2} This case originated on November 14, 2024, when an Allen County

grand jury returned an 11-count indictment against Graham. Counts 1 through 9 of

the indictment charged Graham with Rape, with each of those counts being a first-

degree felony in violation of R.C. 2907.02(A)(1)(b). Counts 10 and 11 of the

indictment charged Graham with Gross Sexual Imposition, with each of those

counts being a third-degree felony in violation of R.C. 2907.05(A)(4).

{¶3} On November 20, 2024, Graham filed a written plea of not guilty with

regard to all counts of the indictment. Nearly eight months of pretrial proceedings

then ensued.

{¶4} On July 15, 2025, a jury trial commenced in the case. During the course

of the three-day trial, the prosecution presented the testimony of five witnesses and

ten evidentiary exhibits.

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{¶5} After the State of Ohio rested its case, Graham moved for acquittal

pursuant to Crim.R. 29. At that time, the prosecution moved to amend Counts 1

through 5 and Count 10 of the indictment, to modify the date ranges of the crimes

alleged therein to conform with the evidence presented at trial. The trial court

granted the motion to amend the indictment and overruled the motion for acquittal.

{¶6} Graham then opted to present a case, during which he testified on his

own behalf. Following Graham’s testimony, the defense indicated it had no other

witnesses and no exhibits to present, and the defense rested its case. Graham

renewed his Crim.R. 29 motion for acquittal, which was again overruled by the trial

court.

{¶7} Following the closing arguments of counsel and instructions of law by

the trial court, the jury received the case for deliberation in the early afternoon of

July 17, 2025. Later that same afternoon, the jury returned verdicts finding Graham

guilty as charged in the eleven counts of the amended indictment. The trial court

accepted the verdicts and discharged the jury.

{¶8} The matter then proceeded directly to a sentencing hearing. The trial

court sentenced Graham to a mandatory indefinite term of ten years to life in prison

on each of the rape offenses (Counts 1 through 9), and to sixty months in prison on

each of the gross sexual imposition offenses (Counts 10 and 11). The trial court

ordered that Counts 2 through 9, representing separate incidents of anal rape, be

served concurrently with each other, but that the concurrent sentences on those

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counts be served consecutively to the sentence for Count 1, which was an incident

of rape involving cunnilingus. The trial court further ordered that the sentences on

Counts 10 and 11 be served consecutively to each other, and consecutively to all

other sentences, resulting in an aggregate indefinite sentence of thirty years to life

in prison. On July 18, 2025, the trial court journalized its sentencing orders.

{¶9} On July 29, 2025, Graham filed this appeal.

Summary of Evidence Presented at Trial

{¶10} The State of Ohio’s first witness at trial was Kaleigh Omlor, formerly

known as Kaleigh Graham. Omlor testified that she had known Graham for about

eleven years, and that they had been married in September of 2020 and then

divorced in May of 2025. Omlor testified that she has four children: a daughter,

“G.O.”, born in May of 2013 and who was twelve years old at the time of trial; a

second daughter, who was nine years old at the time of trial; and two sons, who were

eight and three at the time of trial. While Graham apparently fathered Omlor’s

younger children, Graham is not the biological father of G.O., meaning he was

G.O.’s stepfather for the duration of Omlor’s marriage to Graham.

{¶11} In her testimony, Omlor described the single-story, three-bedroom

house in Lima, Ohio where she and Graham had lived from October of 2023 through

the end of October of 2024, along with Omlor’s four children and an older child

who was Graham’s biological son. During that time, G.O. shared a bedroom with

her younger sister, in which the girls slept on bunk beds, and the three boys shared

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another bedroom. Omlor further testified about the school attended by G.O. and the

dates of when that school let out for the summer and resumed in the fall.

{¶12} During the general timeframe at issue in the case, being October of

2023 to October of 2024, Omlor worked a factory job several days per week from

6:00 a.m. until 6:30 p.m. After getting home from work, Omlor would fix a late

dinner for the family and make sure the kids got showers, with the goal of getting

the kids into bed by 10:00 p.m. on school nights. On weekends, the children were

permitted to stay up later than 10:00 p.m. if they wished. On the days when Omlor

was at work and the children were not in school, Graham would be at home with the

children.

{¶13} After giving that initial background testimony, Omlor was recalled

later in the trial to provide additional testimony. In that subsequent testimony,

Omlor testified that on September 25, 2024, she was in the car with G.O., while the

two of them were running an errand, and G.O. asked her mother if she remembered

the time when she woke up in the middle of the night and found G.O. and Graham

playing Fortnight in the living room. Omlor replied that she did recall that night,

and G.O. then disclosed to her that, on that night, Graham had taken the couple’s

back massager and put it on G.O.’s private parts after pulling down her pants. In

her testimony, Omlor confirmed that she recalled the night in question, because she

had awakened in the middle of the night and found her husband and G.O. in the

living room playing the video game.

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{¶14} Omlor testified that, on September 25, 2024, after G.O. disclosed the

massager incident to her, G.O. then began crying and explained that she had tried to

tell her mother about it previously but had not wanted Graham to get in trouble. At

that time, G.O. made no mention of any other inappropriate touching or conduct.

Later that same date, Omlor confronted Graham about G.O.’s accusation and, while

Graham denied any wrongdoing, he told Omlor he had used the massager on G.O.

but only on her stomach. Graham suggested that G.O was making up the massager

accusation because he had disciplined her by limiting her use of an electronic tablet.

{¶15} Omlor testified that she did not contact the police right away because

of her concern that Graham might pose a threat to the family’s safety if he was not

arrested immediately. Instead, Omlor set up a camera at home to monitor the

hallway and also took steps to line up childcare for the children so that she did not

have to leave them in Graham’s care while she was at work.

{¶16} Omlor testified that, on October 3, 2024, she took the children to her

mother’s house with the goal of asking her mother for guidance on how to handle

the situation. While there, Omlor’s brother, Braden, became aware that G.O. had

accused Graham of doing something inappropriate of a sexual nature. After

receiving that information, Braden left the house to go to the Grahams’ residence to

confront Graham about the accusations, while Omlor stayed at her mother’s house

with the children into the evening hours. During that visit, G.O. disclosed additional

facts concerning Graham’s inappropriate conduct toward her.

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{¶17} Omlor testified that she and the children returned to their own home

on the night of October 3, 2024 at approximately 10:30 to 11:00 p.m. Upon arriving

home, Omlor found that her gun safe was open and her gun was missing, a screen-

less window in the bedroom she shared with Graham was wide open, and Graham

was gone. Omlor immediately texted Graham to ask where her gun was and why

the bedroom window was wide open. Graham replied with a text saying that it was

his gun, that he had taken it with him, and that he had jumped out the window

because Omlor’s brother had come over to the house.

{¶18} Omlor testified that she and her mother phoned the police that night

and then, on the morning of October 4, 2024, Omlor drove to the Lima Police

Department with all the children and made a police report. Omlor testified that the

case was then assigned to Detective Stechschulte, who referred Omlor and G.O. to

the Child Advocacy Center so that a private forensic interview of G.O. could be

conducted. That interview was done on October 8, 2024. Omlor testified that a

general medical exam of G.O. was also done, but that a more invasive exam was

not done due to the length of time that had passed since the time G.O. reported

having been raped.

{¶19} While on the witness stand at trial, Omlor also identified photographs

taken of a storage drawer in her and Graham’s bedroom, which showed the

massager. Omlor also identified the massager itself in open court. Omlor further

identified a number of text messages sent between herself and Graham in the last

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week of September and the first week of October of 2024. While Graham did not

directly admit to any wrongdoing in those messages, he apologized in the texts that

he sent. He also urged Omlor to promise not to contact law enforcement, saying

“[i]t’s between us and God.” (Tr., 366). In one of those text conversations, Omlor

asked Graham to take a lie detector test.

{¶20} Finally, Omlor testified that Graham never returned to their home after

he left on the night of October 3, 2024, after having climbed out the window.

{¶21} At trial, the second witness called by the prosecution was G.O., who

testified in a room separate from the courtroom via electronic means. G.O. testified

that she was twelve years old, and that she had previously lived in Lima with her

mom, Graham, who was her her stepdad, and her four siblings. G.O. testified that

they had lived in a one-story house with three bedrooms, and that her mom and

Graham shared one bedroom, her brothers shared another room, and she and her

younger sister shared the third bedroom, where they slept on bunk beds. G.O.

testified that she slept on the top bunk and her sister slept on the bottom. G.O.

testified that on school nights, she usually had to go to bed by nine o’clock, but that

on weekends she would stay up later.

{¶22} G.O. testified that in September of 2024, she was in the car with her

mom and she told her mom about an incident involving Graham. G.O. identified a

photograph as being a massager and testified that something had happened with the

massager when she was eleven years old. G.O. testified that she was in the living

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room with Graham and that everyone else was asleep as it was probably past

midnight. G.O. testified that she and Graham were playing Fortnight and that he

brought out a massager from his bedroom. G.O. testified that he turned on the

massager and, while it was vibrating, he placed it between her legs. G.O. testified

that she had been wearing pants before that occurred but that Graham had removed

her pants and underwear. G.O. identified the body part touched by the massager as

being her “private”, which is the area used to “pee” when she goes to the restroom.

(Tr., 228-229). G.O. testified that, sometime later that evening, her mother came

out from her bedroom and asked why G.O. was still awake. G.O finished playing

the video game and then went to bed, and did not tell her mother about what had

happened that night.

{¶23} G.O. testified that, another time late at night when she was also eleven

years old, Graham put his mouth on the same private area that she had previously

identified in court as being where he touched her with the massager. On that

occasion, G.O. was sleeping on the floor in her bedroom because one of her brothers

was in her bed. G.O. testified that she woke up to the sound of Graham’s footsteps

coming into the room, but that she pretended to be asleep. G.O. testified that

Graham then put his mouth on her private area for twenty seconds and that she could

feel his tongue on her. G.O. testified that she wanted to tell her mother what had

happened but that she did not have a good opportunity to do so, as her siblings were

always with her mother.

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{¶24} G.O. testified that, on another date when she was eleven, while sitting

on the couch watching TV with Graham, he put her hand on a private part of his

body, which she described as being bare skin, shaped like a water bottle, and feeling

somewhere between soft and hard. G.O. testified that Graham guided her hand to

that part of his body and told her to squeeze a little with her hand, while he covered

up her eyes with his hand. G.O. testified that the part of his body that Graham made

her touch was between his legs.

{¶25} Finally, G.O. testified that Graham used that same private body part

of his on several occasions to touch her “behind”, “where I go poop.” (Tr., 247-

248). G.O. testified that this happened probably around ten different times, but “it

felt like every day sometimes.” (Tr., 246-247). G.O. testified that she was eleven

years of age when those incidents occurred, and that it usually happened at night,

after her bedtime, when she was in her bedroom. G.O. testified that she would be

laying on her side in her bed and that Graham would lie down behind her, facing the

same way she was. G.O. testified that Graham would remove her pants or

underwear, and then “[h]e would do what parents do”, which she could feel on the

part of her body that she uses to “[g]o poop.” (Tr., 251). G.O. testified that, when

this occurred, she could feel Graham’s body moving back and forth and that, each

time it happened, she could feel something go inside the spot that she poops from

and that it hurt a little. G.O. testified that, after that would happen, Graham would

use a wet wipe to wipe the area of her behind that she had referenced him touching

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with his private part, then he would put her clothes back on her and leave the

room. G.O. testified that Graham told her not to tell anyone, including her mom,

about what had happened, indicating that he and possibly her mother would go to

jail.

{¶26} Retired Detective Kent Miller of the Lima Police Department was the

third witness for the State of Ohio. Miller testified that, while employed by the

Lima Police Department, he had been assigned to the digital forensics lab of the

Northwest Ohio Technology Crimes Unit. Miller testified that, in the instant case,

he was asked to perform an extraction of the data contained in Graham’s cell phone,

which Miller then did on October 4, 2024. At trial, Miller testified as to the data

extraction he performed, and he identified printed-out reports reflecting some of the

information found on Graham’s cell phone. Those reports included a thread of text

messages between Graham’s phone and that of his wife at the time, as well as a

history of the Internet searches performed on Graham’s cell phone on October 4,

2024.

{¶27} The state’s fourth witness at trial was Braden Garmatter, who is the

brother of Kaleigh Omlor and, therefore, the maternal uncle of G.O. Garmatter

testified that his sister had been in a relationship with Graham for approximately ten

years and that, during that time, he and Graham got along with no

problems. Garmatter testified that on October 3, 2024, he was present at his

mother’s house, and his sister and her children were there. Garmatter testified that

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his sister and his mother were outside speaking with G.O. and, while the adult

women were initially hesitant to tell him what was going on, he eventually learned

from them that Graham had “messed with” G.O. (Tr., 409). Upon hearing that,

Garmatter left and drove over to the Grahams’ residence. Garmatter testified that

he knocked on the door and, when Graham opened the door, Garmatter asked

Graham what he had done to G.O. Garmatter testified that, in response, Graham

acted confused. Garmatter testified that he posed the question again to Graham, and

Graham slammed the door shut. Garmatter testified that he then heard footsteps

walking or running through the house. Garmatter knocked on the door a few more

times but Graham never came back to the door, so Garmatter finally got in his car

and drove back to his mother’s home.

{¶28} The state’s fifth and final witness as trial was Detective Steven

Stechschulte of the Lima Police Department. Stechschulte testified that he was

assigned to work on the instant case on October 4, 2024. After Stechschulte learned

that Graham was in possession of a firearm, Stechschulte had an exigent ping

performed on Graham’s cell phone through the phone company. Based on the result

of the ping and information provided by Omlor, it was determined that Graham was

near his mother’s house in Lima. Officers then went to that location and took

Graham into custody.

{¶29} Stechschulte testified that, later that same afternoon, he interviewed

Graham, who consented to having his cell phone processed by police. The phone

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was subsequently processed by Detective Kent Miller, and the data extraction

revealed several exchanges of text messages between Graham and Omlor, as well

as Internet searches made by Graham just prior to his arrest. Stechschulte testified

that one of those Internet searches was “passing lie detector test – police”, and

another search was “beating lie detector test.” There were also searches performed

for “Ohio law on touching children”, “what happens when you are accused of

touching a child”, and “police questioning procedure.” Detective Stechschulte

testified that he again interviewed Graham on October 7, 2024. Portions of the two

recorded interviews with Graham were played for the jury at trial.

{¶30} After the State of Ohio rested its case, Graham testified on his own

behalf. Graham testified that he was 33 years of age at the time of trial and that he

had previously been married to Kaleigh Graham, making him a stepfather to

G.O. Graham testified that he and G.O. had a good relationship while he was her

stepparent.

{¶31} Graham testified that in late September of 2024, his wife asked him if

he put a massager on G.O.’s private area. Graham testified that he told his wife he

had not done so, but that he had used the massager to tickle G.O. on her upper chest

and stomach. Graham testified that he never put the massager anywhere near G.O.’s

vagina.

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{¶32} Graham further testified that he had never placed his mouth on G.O.’s

vagina, and that he had not engaged in anal intercourse with G.O., or touched her in

the area of her anus in any way.

{¶33} Graham testified that he believed G.O. made the allegations against

him because he had punished her by taking away her tablet. Graham testified that

he had made the Internet searches found on his phone in order to understand the

experiences of others with respect to those types of allegations. Finally, Graham

acknowledged slamming and locking his front door and then fleeing the scene when

Kaleigh’s brother came to the door and asked him what he had done to

G.O. Graham testified that he left the area that night because he did not know if

Garmatter had a weapon.

Assignments of Error Raised on Appeal

First Assignment of Error

The trial court plainly erred by providing jurors with improper jury instructions in violation of Graham’s rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.

Second Assignment of Error

The trial court committed plain error by failing to sever the rape and Gross Sexual Imposition charges within the indictment, thereby subjecting Mr. Graham to prejudicial joinder in contravention of Crim.R. 14.

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Third Assignment of Error

Graham was denied effective assistance of counsel because the individual and cumulative effect of counsel’s failures deprived Graham of his rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.

Fourth Assignment of Error

Mr. Graham’s convictions for GSI and rape were against the manifest weight of the evidence, in violation of his rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16 of Article I of the Ohio Constitution.

{¶34} In the first assignment of error, Graham contends that the trial court

committed plain error with regard to two different jury instructions, one relating to

the definition of “anal intercourse” provided to the jury and the other one being a

“consciousness of guilt” instruction relating to evidence of flight.

{¶35} “‘A trial court’s instructions to a jury must correctly, clearly, and

completely state the law applicable to the case.’” State v. Johnson, 2023-Ohio-2638,

¶ 32 (3d Dist.), quoting State v. Orians, 2008-Ohio-6185, ¶ 10 (3d Dist.). “Juries

are entitled to ‘all instructions which are relevant and necessary for the jury to weigh

the evidence and discharge its duty as the fact finder.’” State v. Wilson, 2024-Ohio-

776, ¶ 28, quoting State v. Comen, 50 Ohio St.3d 206, paragraph two of the syllabus

(1990).

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{¶36} “Jury instructions are also to be ‘appropriate to the facts of the

case.’” State v. Johnson, supra, at ¶ 32, quoting State v. Turner, 2004-Ohio-6489, ¶

35 (3d Dist.). “When a jury instruction is challenged as being incorrect, an appellate

court ‘must determine whether the jury charge probably misled the jury in a matter

materially affecting the complaining party’s substantial rights.’” Johnson, at ¶ 32,

quoting State v. Frye, 2018-Ohio-894, ¶ 105 (3d Dist.). “‘An appellate court

reviewing jury instructions must examine the specific charge at issue in the context

of the entire charge, and not in isolation.’” Johnson, at ¶ 32, quoting Orians,

supra, at ¶ 10.

{¶37} Further, as the Supreme Court of Ohio explained in State v. Gardner,

2008-Ohio-2787, at ¶ 36:

“Jury instructions that effectively relieve the state of its burden of persuasion violate a defendant’s due process rights,” State v. Adams, 103 Ohio St.3d 508, 2004 Ohio 5845, 817 N.E.2d 29, P 97, citing Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and subvert the presumption of innocence and the right to have a jury determine the facts of a case. Carella v. California (1989), 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218.

{¶38} As a general rule, decisions on the giving of jury instructions are

within a trial court’s discretion, which an appellate court will not disturb absent an

abuse of discretion. See, e.g., State v. Guster, 66 Ohio St.2d 266, 271 (1981).

{¶39} Additionally, pursuant to Crim.R. 30(A), “[o]n appeal, a party may not

assign as error the giving or the failure to give any instructions unless the party

objects before the jury retires to consider its verdict, stating specifically the matter

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objected to and the grounds of the objection.” Thus, “‘[a]bsent plain error,

the failure to object to improprieties in jury instructions, as required by Crim.R. 30,

is a waiver of the issue on appeal.’” State v. Perkins, 2025-Ohio-2390, ¶ 31 (3d

Dist.), quoting State v. Underwood, 3 Ohio St.3d 12, 13 (1983). “As a result,

‘[t]he failure to object to a jury instruction constitutes a waiver of any claim of error

relative thereto, unless, but for the error, the outcome of the trial clearly would have

been otherwise.’” Perkins, at ¶ 31, quoting Underwood, supra, at syllabus. “To

demonstrate plain error under Crim.R. 52(B), the party asserting error must show

that an error occurred, that the error was plain, and that the error affected his

substantial rights.” State v. Bond, 2022-Ohio-4150, ¶ 17. The Supreme Court of

Ohio has interpreted the third prong of that test to mean “that the trial court’s error

must have affected the outcome of the trial.” Bond, at ¶ 17, quoting State v. Barnes,

94 Ohio St.3d 21, 27 (2002). “‘We recognize plain error with the utmost caution,

under exceptional circumstances, and only to prevent a manifest miscarriage of

justice.’” State v. Schmelzer, 2024-Ohio-5987, ¶ 36 (3d Dist.), quoting State v.

Harrison, 2015-Ohio-1419, ¶ 69 (3d Dist.).

{¶40} In the instant case, Graham first argues in the first assignment of error

that the trial court erred when instructing the jury on the definition of “anal

intercourse”. This claim is relevant to Graham’s convictions on Counts 2 through

9 of the indictment, which charged Graham with separate counts of anal rape in

violation of R.C. 2907.02(A)(1)(b). Because Graham did not object to the trial

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court’s jury instruction with which he now claims error, Graham concedes that he

has waived all but plain error on appeal with respect to the instruction at issue.

{¶41} As noted, in Counts 2 through 9 of the indictment, Graham was

charged with, and ultimately found guilty of, anal rape in violation of R.C.

2907.02(A)(1)(b), which provides that “[n]o person shall engage in sexual conduct

with another when * * * [t]he other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.” R.C. 2907.01(A) defines

“sexual conduct” as “vaginal intercourse between a male and

female; anal intercourse, fellatio, and cunnilingus between persons regardless of

sex; and without privilege to do so, the insertion, however slight, of any part of the

body or any instrument, apparatus, or other object into the vaginal or anal opening

of another.” “Penetration, however slight, is sufficient to complete vaginal or anal

intercourse.” Id.

{¶42} At trial, when instructing the jury as to the requisite element of sexual

conduct in the charges of Rape at issue here, the trial court gave the following

instruction:

In this case sexual conduct means anal intercourse, cunnilingus between personal (sic) regardless of sex, and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the anal opening of another.

(Tr., 548).

The trial court then proceeded to additionally instruct the jury as follows:

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Anal intercourse means penetration of the penis into the anal opening of a male or female. Sexual conduct includes anal intercourse with even the slightest penetration. Where an alleged child victim states that poop comes out of her bottom, that the defendant placed his private part inside the child’s bottom, and that when the defendant did this it hurt, such evidence may be – may be – sufficient evidence of anal penetration.

A reasonable inference that at least slight penetration had occurred can be made, but does not have to be made, from the acts of spreading the cheeks of a child’s buttock, making contact with the child’s anal area, moving a penis or other object back and forth in the child’s anal area and expressing an intention to have anal intercourse.

(Tr., 548). (Emphasis added).

{¶43} On appeal, Graham argues that giving the portions of that jury

instruction emphasized above was plain error in that such language constituted

improper fact-finding by the trial court and amounted to an impermissible one-sided

jury instruction suggesting that the trial court believed G.O.’s testimony was

sufficient to establish guilt. Graham also argues that the instruction was an incorrect

statement of law, based on the fact that the statutory definition of sexual conduct

requires penetration but, here, the trial court instructed the jury that they could infer

the element of penetration “from the acts of spreading the cheeks of a child’s

buttock, making contact with the child’s anal area, moving a penis or other object

back and forth in the child’s anal area and expressing an intention to have anal

intercourse.” (Emphasis added). Graham asserts that none of those acts,

individually or collectively, factually constitute penetration as defined by Ohio law.

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{¶44} Upon review, this Court concludes that Graham’s claim of plain error

with regard to that instruction is well taken.

{¶45} In analyzing the issues presented by this jury instruction, we note as a

preliminary matter that the record contains no information as to why the trial court

decided to give the instruction at issue, or from what source or sources the language

was derived, as the record should.

{¶46} However, this Court’s legal research reflects that the first paragraph of

the instruction was likely based on the decision of the Eighth District Court of

Appeals in In re M.P., 2023-Ohio-925 (8th Dist.). In In re M.P., the court of appeals

reviewed a challenge to the sufficiency of the evidence supporting the juvenile

court’s delinquency findings on allegations of anal rape, among other crimes. In

denying that challenge on appeal, the court of appeals highlighted certain evidence

in the record, stating:

We specifically note that, during his interview with [the investigator], [the victim] stated that “poop comes out of his bottom” and that M.P. placed his private “inside” of [the victim’s] bottom. (Tr. 32-33.) Neither party disputes that [the victim] could identify the relevant parts of his body. [The victim] clarified to [the investigator] that when M.P. did this, it hurt, and that it happened “more than one time.” (Tr. 34.)

In re M.P., at ¶ 39.

{¶47} In the instant case, this Court’s research further reflects that the second

paragraph of the instruction at issue was likely based on the decision of the Eighth

District Court of Appeals in State v. Johnson, 2015-Ohio-4492 (8th Dist.). In

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Johnson, the appellate court reviewed a challenge to the trial court’s denial of a

CrimR. 29 motion for acquittal on multiple charges, including allegations of anal

rape. In finding that the evidence presented in that case supported the trial court’s

ruling on the motion for acquittal with regard to anal rape, the court of appeals

stated:

A reasonable inference could be made from the acts of placing [the victim] over a pillow, spreading her cheeks, making contact with the child’s anal area, and expressing his intention to have anal intercourse, that at least slight penetration had occurred over the course of the ten- minute incident.

Johnson, at ¶ 22.

{¶48} Notably, neither In re M.P. or Johnson involved appellate review of a

jury instruction utilizing the language quoted above.

{¶49} In the case sub judice, regardless of the source of the challenged

instruction, this Court finds the language used by the trial court to be both erroneous

and prejudicial for several reasons.

{¶50} In reaching this conclusion, we focus first on the language in the first

paragraph at issue, in which the trial court instructed the jury that “[w]here an

alleged child victim states that poop comes out of her bottom, that the defendant

placed his private part inside the child’s bottom, and that when the defendant did

this it hurt, such evidence may be – may be – sufficient evidence of anal

penetration.” (Tr., 548).

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{¶51} The term “sufficient evidence”, which was used by the trial court in

that portion of the instruction, is a well-established legal term denoting that adequate

evidence had been presented by the prosecution to permit a criminal charge, or

charges, to proceed to be given to the jury for its consideration. See, e.g., State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997) (“With respect to sufficiency of the

evidence, ‘“sufficiency” is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law’”, quoting Black’s Law

Dictionary (6 Ed.1990) 1433). See, also, Crim.R. 29(A).

{¶52} While the trial court here correctly instructed the jury during the

general charge that the elements of any crime charged in the indictment must have

been proven beyond a reasonable doubt before Graham could be found guilty of that

crime, we nevertheless find the use of the term “sufficient evidence” in the jury

instruction at issue to have been erroneous. By incorporating the term “sufficient

evidence” into the jury instruction with regard to the evidence of penetration

required to prove anal intercourse, the trial court effectively advised the jury that a

standard lower than proof beyond a reasonable doubt was applicable to the requisite

element of sexual conduct (i.e. anal intercourse) in Counts 2 through 9. As noted

above, jury instructions that subvert the presumption of innocence and relieve the

state of its burden are violative of a defendant’s right to due process. State v.

Gardner, 2008-Ohio-2787, ¶ 36.

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{¶53} Next, in the second paragraph of the challenged jury instruction, the

trial court instructed the jury that a reasonable inference that at least slight anal

penetration had occurred could be made, but did not have to be made, “from the acts

of spreading the cheeks of a child’s buttock, making contact with the child’s anal

area, moving a penis or other object back and forth in the child’s anal area and

expressing an intention to have anal intercourse.” (Tr., 548).

{¶54} While we acknowledge that the trial court used permissive language

stating that an inference of anal penetration could be made, but did not have to be

made, from the factual examples set forth in that portion of the instruction, we

nonetheless find that the facts set forth in that portion of the instruction are, when

viewed collectively, a prejudicial misstatement of the law on what is required to

prove anal penetration.

{¶55} As previously noted, R.C. 2907.01(A) defines “sexual conduct” as

“vaginal intercourse between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex; and without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or

other object into the vaginal or anal opening of another.” R.C. 2907.01(A) further

provides that “[p]enetration, however slight, is sufficient to complete vaginal or anal

{¶56} Thus, pursuant to R.C. 2907.01(A), the penetration, even though

slight, required to constitute anal intercourse as a form of sexual conduct must be

-23- Case No. 1-25-41

penetration of the victim’s “anal opening.” In this case, by using the term “anal

area”, a phrase that connotes a portion of the body in the vicinity of the anus but not

necessarily the anal opening itself, the trial court misadvised the jury on the legal

definition of sexual conduct and, by doing so, lessened the requirement that the

penetration necessary to prove sexual conduct be of the anal opening.

{¶57} With regard to both paragraphs of the jury instruction at issue, we

conclude that additional error occurred through the inclusion of the factual examples

within the instruction. As previously noted, Graham argues that such language

constituted improper fact-finding by the trial court and amounted to an

impermissible one-sided jury instruction suggesting that the trial court believed

G.O.’s testimony.

{¶58} It is well established that, as the trier of fact, “[t]he jury is the sole

judge of the weight of the evidence and the credibility of witnesses.” State v. Antill,

176 Ohio St. 61, 67 (1964). A jury instruction may not invade the province of the

jury by assuming a disputed fact is true. See City of Maumee v. Anistik, 69 Ohio

St.3d 339 (1994).

{¶59} In this case, the jurors were correctly instructed as part of the general

charge that they were “the sole judges of the facts, the credibility of the witnesses,

and the weight of the evidence” and that, upon applying the tests of credibility

properly outlined by the trial court, “you will assign to the testimony of each witness

such weight as you deem proper.” (Tr., 543). However, in the challenged

-24- Case No. 1-25-41

instruction, by then specifically highlighting facts relating to the alleged victim’s

testimony, upon which the jury was essentially instructed it could base a finding of

guilt with regard to the anal rapes, the trial court not only placed undue emphasis on

the evidence of that nature, which was in dispute, but also tended to imply that the

trial court had found that testimony to be credible. As phrased, we find that the jury

instruction improperly invaded the province of the jury by suggesting that disputed

evidence was true.

{¶60} Finally, assuming for the sake of argument only that it was proper for

the trial court to highlight disputed testimony in the jury instruction at issue, we also

determine the instruction to be erroneous because the factual examples contained in

the jury instruction do not accurately reflect facts that were testified to by the victim,

or any other witness, in this case.

{¶61} Although a trial court “has broad discretion to decide how to

fashion jury instructions,” such instructions must “present a correct, pertinent

statement of the law that is appropriate to the facts” of the case. State v. White, 2015-

Ohio-492, ¶ 46, citing State v. Griffin, 2014-Ohio-4764, ¶ 5; State v. Lessin, 67 Ohio

St.3d 487, 493 (1993). Accordingly, “a court should not give an instruction unless

it is specifically applicable to the facts in the case.” State v. Fritz, 2005-Ohio-4736,

¶ 19 (2d Dist.), citing State v. Guster, 66 Ohio St.2d 266 (1981).

{¶62} In the instant case, the trial record contains no evidence of “spreading

the cheeks of a child’s buttock” or of Graham “expressing an intention to have anal

-25- Case No. 1-25-41

intercourse”, which were some of the factual examples provided to the jury in the

challenged instruction. We find that giving a jury instruction including those very

specific factual examples that were not supported by the evidence adduced at trial

was both erroneous and prejudicial. The facts of the case did not support giving an

instruction containing those factual examples, and the instruction misleadingly

tended to suggest that such facts were in evidence when they were not.

{¶63} Having determined that the challenged jury instruction was erroneous

for multiple reasons, we further conclude that, given the nature of the errors

involved with the instruction, the instruction ultimately served to mislead the jury

in a manner materially affecting Graham’s substantial rights and the instruction

therefore amounts to plain error on the facts of this case.

{¶64} “Jury instructions are critically important to assist juries in

determining the interplay between the facts of the case before it and the applicable

law.” State v. Griffin, 2014-Ohio-4767, ¶ 5. “A trial court’s instructions to a jury

must correctly, clearly, and completely state the law applicable to the case.” State

v. Orians, 2008-Ohio-6185, ¶ 10 (3d Dist.).

{¶65} In this case, as reflected by our detailed summary of the trial evidence,

supra, the testimony of the victim, G.O., was the only evidence presented at trial

that tended to establish the sexual conduct, being anal intercourse, at issue in Counts

2 through 9. Accordingly, the materially prejudicial impact of the erroneous jury

instruction cannot be underestimated when that instruction unduly emphasized the

-26- Case No. 1-25-41

victim’s testimony, suggested that testimony to be true, highlighted facts supporting

proof of anal intercourse when those facts were not in evidence, and served to advise

the jury that a standard lower than that of proof beyond a reasonable doubt was

applicable to the requisite element of sexual conduct in Counts 2 through 9. The

record also reflects that the prosecution quoted both parts of the erroneous jury

instruction in its closing argument, when urging the jury to find on Counts 2 through

9 that anal intercourse had been proven through G.O.’s testimony, a fact which we

find to have exacerbated the substantial and material prejudice stemming from the

instruction.

{¶66} Accordingly, on the basis of the plainly erroneous instruction relating

to the definition of “anal intercourse” provided to the jury, reversal of Counts 2

through 9 is required to prevent a manifest miscarriage of justice in this case.

{¶67} In the first assignment of error, Graham also argues that the trial court

committed plain error in giving a consciousness of guilt instruction based on

evidence of flight, a claim which relates to all counts of the indictment.

At issue here is the following jury instruction given by the trial court:

Now, testimony had been admitted indicating that the defendant fled from [his home] when confronted about the allegation in this case * * *. You are instructed that this type of conduct alone does not raise a presumption of guilt, but it may tend to indicate the defendant’s consciousness or awareness of guilt. If you find that the facts do not support that the defendant fled * * *, or if you find that some other motive prompted the defendant’s conduct, or if you are unable to decide what the defendant’s motivation was, then you should not consider this evidence for any purpose. However, if you find that the

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facts support that the defendant engaged in such conduct, and if you decide that the defendant was motivated by a consciousness or an awareness of guilt, you may, but are not required to, consider this evidence in deciding whether the defendant is guilty of the crimes charged. You alone will determine what weight, if any, to give to this evidence.

(Tr., 549-550).

{¶68} On appeal, Graham does not dispute that the consciousness of guilt

instruction given by the trial court was a correct statement of law, but he maintains

that it was not warranted by the evidence. Again, because no objection was lodged

by the defense at trial to the instruction at issue, a plain-error analysis applies.

{¶69} “Requested jury instructions should ordinarily be given if they are

correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 2015-Ohio-3954, ¶ 240, citing Murphy v. Carrollton Mfg. Co., 61

Ohio St.3d 585, 591 (1991).

{¶70} We review a trial court’s decision to give a particular jury

instruction for abuse of discretion. State v. Robinson, 2019-Ohio-558, ¶ 30 (10th

Dist.). With regard to the instruction at issue, evidence of flight, meaning evidence

of “‘some escape or affirmative attempt to avoid apprehension,’” is admissible to

show consciousness of guilt. Robinson, at ¶ 29, quoting State v. Robinson, 2007-

Ohio-2388, ¶ 19 (1st Dist.).

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{¶71} As the Supreme Court of Ohio explained in State v. Hand, 2006-Ohio-

18, “‘“flight, escape from custody, resistance to arrest, concealment, assumption of

a false name, and related conduct are admissible as evidence of consciousness of

guilt, and thus of guilt itself.”’” Id., at ¶ 167, quoting State v. Eaton, 19 Ohio St.2d

145, 160 (1969), quoting 2 Wigmore on Evidence, (3d Ed. 1979) 111, Section

276. A consciousness of guilt jury instruction, based on the accused’s flight, is

appropriate when supported by sufficient evidence. Robinson, 2019-Ohio-558 (10th

Dist.), ¶ 29, citing State v. Grindstaff, 2014-Ohio-2581, ¶ 29 (12th Dist.).

{¶72} In this case, Graham argues that evidence that he left his house when

confronted by his brother-in-law did not support giving a consciousness of guilt

instruction. We disagree. While Graham asserts that the evidence was that he

merely retreated from a potentially dangerous situation, we find that the evidence

also supports an inference that Graham took measures to avoid being

found. Specifically, when confronted by his brother-in-law about G.O.’s

allegations, Graham was then on notice that his wife had not kept those allegations

to herself. In response, Graham immediately slammed the door on his brother-in-

law, armed himself with a firearm, and then fled the house by climbing through a

back window. Graham did not return to his home that evening, nor the next day

prior to his arrest at his mother’s house, and there was no indication that he alerted

his wife to his whereabouts during the hours that he had gone missing.

-29- Case No. 1-25-41

{¶73} Under those circumstances, we conclude that the trial court did not

abuse its discretion by giving a neutral jury instruction on consciousness of guilt,

and that the giving of that instruction did not amount to plain error. See State v.

Aekins, 2023-Ohio-322, ¶ 119 (10th Dist.) (characterizing a jury instruction as

“neutral in its effect, as it instructed the jury that it could, but was not required to,

consider the evidence of appellant’s flight in determining whether appellant was

guilty of the crimes charged).

{¶74} For the reasons stated, Graham’s first assignment of error is sustained

in part and overruled in part.

{¶75} In the second assignment of error, Graham argues that the trial court

committed plain error by failing to sever the Rape and Gross Sexual Imposition

charges for purposes of trial, thereby subjecting Graham to prejudicial joinder.

{¶76} Crim.R. 8(A) governs joinder of offenses, and provides that “[t]wo or

more offenses may be charged in the same indictment” if the offenses charged “are

of the same or similar character, or are based on the same act or transaction, or are

based on two or more acts or transactions connected together or constituting parts

of a common scheme or plan, or are part of a course of criminal conduct.”

{¶77} “Ohio ‘favors joining multiple offenses in a single trial * * * if the

offenses charged “are of the same or similar character.”’” State v. Spaulding, 2016-

Ohio-8126, ¶ 61, quoting State v. Lott, 51 Ohio St.3d 160, 163 (1990), quoting

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Crim.R. 8(A). Joinder is to be liberally permitted “to conserve judicial resources,

reduce the chance of incongruous results in successive trials, and diminish

inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58 (1992).

{¶78} “Notwithstanding the policy in favor of joinder,” Crim.R. 14 permits

a defendant to request severance of the “counts of an indictment on the grounds that

he or she is prejudiced by the joinder of multiple offenses.” State v. LaMar, 2002-

Ohio-2128, ¶ 49.

{¶79} In relevant part, Crim.R. 14 provides that “[i]f it appears that a

defendant * * * is prejudiced by a joinder of offenses * * * in an indictment, * * *

the court shall order an election or separate trial of counts * * * or provide such

other relief as justice requires.”

{¶80} In moving for severance pursuant to Crim.R. 14, the defendant “has

the burden of furnishing the trial court with sufficient information so that it can

weigh the considerations favoring joinder against the defendant’s right to a fair

trial.” State v. Torres, 66 Ohio St.2d 340, 343 (1981). “Even then, the state can

overcome a defendant’s claim of prejudicial joinder by showing either that (1) it

could have introduced evidence of the joined offenses as ‘other acts’ under Evid.R.

404(B) or (2) the ‘evidence of each crime joined at trial is simple and

direct.’” Spaulding, supra, at ¶ 62, quoting State v. Lott, supra, at 163.

{¶81} Normally, a trial court’s ruling on a Crim.R. 14 motion to sever is

reviewed on appeal for an abuse of discretion. State v. Hand, 2006-Ohio-18, ¶

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166. However, if a defendant did not file a Crim.R. 14 motion to sever in the trial

court, then claims of prejudicial joinder are reviewed for plain error on

appeal. Spaulding, ¶ 64, citing Lott at 164.

{¶82} To prevail under the plain error standard, the defendant must establish

that an error occurred, it was obvious, and it affected his or her substantial

rights. Spaulding, at ¶ 64, citing Crim.R. 52(B); State v. Barnes, 2002-Ohio-68

(2002). Notice of plain error on appeal is to be taken “with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91, paragraph three of the syllabus (1978).

{¶83} In the instant case, as has been previously noted, Graham was tried on

an 11-count indictment. Counts 1 through 9 of the indictment charged Graham with

Rape, with each of those counts being a first-degree felony in violation of R.C.

2907.02(A)(1)(b). Counts 10 and 11 of the indictment charged Graham with Gross

Sexual Imposition, with each of those counts being a third-degree felony in violation

of R.C. 2907.05(A)(4).

{¶84} On appeal, Graham argues that he was subjected to prejudicial joinder

and that the trial court erred by failing to sever the Rape and Gross Sexual

Imposition charges for trial. In support of that claim, Graham asserts that evidence

of the gross sexual imposition offenses amounted to impermissible evidence that he

had the propensity to commit Rape, and that evidence of the rape offenses amounted

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to impermissible evidence that he had the propensity to commit Gross Sexual

Imposition.

{¶85} In reviewing this claim, we note as a preliminary matter that Graham

did not file a motion to sever the offenses in the trial court, nor did he otherwise

raise any objection to the eleven counts of the indictment being charged or tried

together. Accordingly, a plain error analysis applies.

{¶86} Upon review of the trial record before us, we conclude that joinder of

all eleven offenses in the indictment was proper pursuant to Crim.R. 8 because the

crimes charged in each count were of the same or similar character and, further,

were all part of a course of criminal conduct. The eleven crimes charged in the

indictment were all sex offenses, alleged to have been perpetrated against a single

victim, and all of the incidents occurred at the same location, under very similar

circumstances, and occurred within a relatively limited timeframe. Moreover,

Graham has failed to demonstrate any prejudice on appeal by the joinder of the

eleven offenses for trial, as the evidence relating to each individual offense was

simple and direct. There is no indication from the record that the jury confused the

evidence as to the different counts or that it was influenced by the cumulative effect

of the joinder. With regard to that latter issue, we also note that the trial court

instructed the jury as part of the general charge in the case as follows:

The charges set forth in each count in the indictment constitute a separate and distinct matter. You must consider each count and the

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evidence applicable to each count separately and you must state you finding as to each count uninfluenced by your verdict as to any other count. The defendant may be found guilty or not guilty of any one or all of the offenses charged.

(Tr., 541). “A jury is presumed to follow the instructions given to it by the trial

judge.” State v. Loza, 71 Ohio St.3d 61, 75 (1994).

{¶87} For all of those reasons, had the defense filed a motion to sever the

counts in the indictment for purposes of trial, the trial court would have been well

within its discretion in denying such a motion. Accordingly, the failure of the trial

court to sua sponte sever the counts in the indictment for trial falls well short of

plain error.

{¶88} The second assignment of error is overruled.

{¶89} In the third assignment of error, Graham argues that he was deprived

of the effective assistance of trial counsel. Graham asserts that three different

omissions on counsel’s part amounted to ineffective assistance of counsel, both

individually and cumulatively.

{¶90} “[I]n Ohio, a properly licensed attorney is presumed competent.” State

v. Gondor, 2006-Ohio-6679, ¶ 62. To prove ineffective assistance of counsel, a

defendant must establish that: (1) counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). Counsel’s performance is deficient if it falls below an objective

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standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136,

paragraph two of the syllabus (1989). Prejudice exists if there is “a reasonable

probability that, but for counsel’s errors, the outcome of the proceeding would have

been different.” State v. Sowell, 2016-Ohio-8025, ¶ 138.

{¶91} “Under [the] doctrine of cumulative error, a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair

trial even though each of the numerous instances of trial court error does not

individually constitute cause for reversal.” State v. Spencer, 2015-Ohio-52, ¶ 83 (3d

Dist.), citing State v. Powell, 2012-Ohio-2577, ¶ 222-224; State v. Garner, 74 Ohio

St.3d 49, 64 (1995). “‘To find cumulative error, a court must first find multiple

errors committed at trial and determine that there is a reasonable probability that the

outcome below would have been different but for the combination of the harmless

errors.’” State v. Stober, 2014-Ohio-5629, ¶ 15 (3d Dist.), quoting In re J.M., 2012-

Ohio-1467, ¶ 36 (3d Dist.).

{¶92} “‘The Ohio Supreme Court previously recognized that the doctrine of

cumulative error may be applied to a claim of ineffective assistance of

counsel.’” State v. Bruce, 2023-Ohio 3298, ¶ 111 (3d Dist.), quoting State v.

Hopings, 2022-Ohio-1532, ¶ 44 (6th Dist.). However, “‘[e]ach assertion

of ineffective assistance of counsel going to cumulative error depends on the merits

of each individual claim; when none of the individual claims of ineffective

assistance of counsel have merit, cumulative error cannot be established simply by

-35- Case No. 1-25-41

joining those meritless claims together.’” State v. Gear, 2023-Ohio-1246, ¶ 59 (3d

Dist.), quoting State v. Graham, 2020-Ohio-6700, ¶ 170.

{¶93} In the instant case, Graham first asserts that his counsel was ineffective

in not objecting to testimony regarding Graham’s possession of a firearm and

potential for violence. Graham argues that the evidence of his abruptly fleeing his

home with a firearm and of his wife’s and the investigating detective’s resulting

concern that Graham could pose a risk of harm was irrelevant, inadmissible, and

unfairly prejudicial pursuant to Evid.R. 401, 402, and 403. We disagree.

{¶94} Pursuant to Evid.R. 401, “relevant evidence” is “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.”

{¶95} Evid.R. 402 provides that “[a]ll relevant evidence is admissible,

except as otherwise provided by the Constitution of the United States, by the

Constitution of the State of Ohio, by statute enacted by the General Assembly not

in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules

prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not

admissible.”

{¶96} Pursuant to Evid.R. 403(A), “[a]lthough relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”

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{¶97} In the instant case, the evidence at trial reflected that the abuse

allegations made by G.O. were not immediately reported to the authorities by her

mother, and the reasons for that delay in contacting law enforcement was a relevant

issue to address at trial. For that reason, G.O.’s mother testified that she was worried

about her family’s safety should her husband not immediately be arrested. G.O.’s

mother then testified that, several days later, she reported the abuse allegations to

the Lima Police Department after Graham fled their home, having taken a firearm

and then climbed out a window. The investigating detective, Detective

Stechschulte, testified as to how and why an exigent ping of Graham’s cell phone

was used to locate him, which included the fact that Graham’s location was

unknown and that the detective was concerned because Graham had taken a firearm

from the home. That testimony was relevant to show how and where Graham was

located and, in particular, why a ping of his phone was done in order to locate him.

{¶98} Our review of the record reflects that the testimony at issue was

probative to the chronology of the events in the case and was not unfairly

prejudicial. The testimony of which Graham complains of here was limited in scope

and the testimony was not offered nor argued by the prosecution as being evidence

reflecting a general propensity on Graham’s part to be prone to violence or criminal

acts.

{¶99} For those reasons, the trial court did not err in admitting the challenged

testimony and, therefore, Graham’s trial counsel was not ineffective in failing to

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object to the testimony. “A defense counsel’s failure to object

is not ineffective assistance of counsel if the evidence is admissible.” State v.

Brown, 2020-Ohio-3614, ¶ 79 (3d Dist.).

{¶100} In this third assignment of error, Graham also argues that his trial

counsel was ineffective in failing to move to sever the Rape and Gross Sexual

Imposition charges in the indictment. This claim directly relates to the argument

raised by Graham in the second assignment of error, supra. After considering the

merit of that claim, we concluded that Graham did not demonstrate error as to the

issue of joinder or the lack of severance. Accordingly, his counsel was not

ineffective for failing to file a motion seeking to sever certain counts of the

indictment, as Ohio courts have long held that trial counsel is not ineffective for

failing to file a motion that had no reasonable probability of success. See, e.g., State

v. Boone, 2023-Ohio-2017, ¶ 11 (9th Dist.), citing State v. Clutter, 2008-Ohio-3954,

¶ 19 (9th Dist.); State v. Jones, 2019-Ohio-2134, ¶ 52 (10th Dist.); State v. Adkins,

2005-Ohio-2577, ¶ 14 (4th Dist.).

{¶101} Graham further argues that his counsel was ineffective in not

objecting to the jury instruction regarding anal intercourse and

penetration. However, our resolution of the first assignment of error, supra, renders

this argument moot and we decline to address it. See App.R. 12(A)(1)(c).

{¶102} Finally, Graham argues that cumulative error resulted from the three

omissions of counsel about which Graham individually assigns error. This Court,

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having found no error on counsel’s part with regard to two of those claims and

having found the third claim to be moot, finds Graham’s cumulative error argument

to be without merit.

{¶103} The third assignment of error is overruled.

{¶104} In the fourth assignment of error, Graham argues that his convictions

on all eleven counts of the amended indictment were against the manifest weight of

the evidence.

{¶105} When determining whether a verdict was against the manifest weight

of the evidence, the appellate court sits as a “thirteenth juror” and examines the

conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing

so, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether,

in resolving conflicts in the evidence, the factfinder “clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Id. Nevertheless, when assessing a manifest-weight challenge,

a reviewing court must still allow the trier-of-fact appropriate discretion on matters

relating to the credibility of the witnesses. State v. Stewart, 2023-Ohio-253, ¶ 11 (3d

Dist.), citing State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the

manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs

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heavily against the conviction,’ should an appellate court overturn the trial court’s

judgment.” State v. Haller, 3d Dist. Allen No. 2012-Ohio-5233, ¶ 9 (3d Dist.),

quoting State v. Hunter, 2011-Ohio-6524, ¶ 119.

{¶106} In the instant case, as a preliminary matter, we note that our

disposition of the first assignment of error, supra, renders moot the manifest weight

arguments made by Graham in this fourth assignment of error as to Counts 2 through

9. Therefore, we need not analyze the weight of the evidence with regard to those

eight counts. App.R. 12(A)(1)(c).

{¶107} With regard to the remaining three counts upon which Graham was

convicted and sentenced, the record reflects the following. In Count 1, Graham was

found guilty of Rape in violation of R.C. 2907.02(A)(1)(b), with the sexual conduct

at issue in that count based on the allegation that he performed cunnilingus on G.O.,

who was age 11 at the time. In Counts 10 and 11, Graham was found guilty of Gross

Sexual Imposition in violation of R.C. 2907.05(A)(4).

{¶108} Thus, at issue in Count 1 was the crime of Rape in violation of R.C.

2907.02(A)(1)(b), which provides that “[n]o person shall engage in sexual conduct

with another when * * * [t]he other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.” Pursuant to R.C.

2907.01(A), “sexual conduct” means “vaginal intercourse between a male and

female; anal intercourse, fellatio, and cunnilingus between persons regardless of

sex; and, without privilege to do so, the insertion, however slight, of any part of the

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body or any instrument, apparatus, or other object into the vaginal or anal opening

of another.”

{¶109} In Counts 10 and 11, at issue was the crime of Gross Sexual

Imposition in violation of R.C. 2907.05(A)(4), which provides that “[n]o person

shall have sexual contact with another; cause another to have sexual contact with

the offender; or cause two or more other persons to have sexual contact when * * *

[t]he other person, or one of the other persons, is less than thirteen years of age,

whether or not the offender knows the age of that person.” Pursuant to R.C.

2907.01(B), “sexual contact” means “any touching of an erogenous zone of another,

including without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or gratifying either

person.”

{¶110} On appeal, Graham asserts that his convictions were against the

manifest weight of the evidence as the prosecution introduced no DNA evidence or

evidence of any physical injury to G.O. in order to corroborate G.O.’s testimony

about the sexual assaults, testimony that Graham argues was contradictory and not

credible.

{¶111} Contrary to Graham’s claims, a thorough review of all the evidence

presented at trial does not reflect that his convictions on Counts 1, 10, and 11 were

against the manifest weight of the evidence.

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{¶112} With regard to Graham’s argument about the lack of physical

evidence, “there is no requirement that testimonial evidence of sexual abuse must

be corroborated by physical or other evidence.” State v. Kaufman, 2010-Ohio-1536,

¶ 71 (7th Dist.), citing In re Hollobaugh, 2009-Ohio-797, ¶ 21 (7th Dist.). Accord,

In re B.D.H., 2020 Ohio App. LEXIS 3743, ¶ 9 (12th Dist. Oct. 13, 2020) (noting

that court and other Ohio appellate districts have held that there is no

requirement that sexual conduct must be proven by medical or physical evidence,

citing State v. Boles, 2013-Ohio-5202, ¶ 40 (12th Dist.); In re N.J.M., 2010-Ohio-

5526, ¶ 38 (12th Dist.); State v. Dade, 2020-Ohio-4545, ¶ 28 (6th Dist.); State

v. Fair, 2019-Ohio-2508, ¶ 51 (11th Dist.). Additionally, the lack of physical

evidence in this case is understandable, given that the crimes were not reported by

the young victim until many weeks and/or months after the criminal acts were

alleged to have occurred. With regard to the delay in telling her mother and,

subsequently, the investigating authorities what Graham had subjected her to, G.O.

provided a reasonable explanation at trial as to why she did not disclose the crimes

until a period of time after they had occurred. Further, as this Court noted in State

v. Lewis, 2020-Ohio-6894 (3d Dist.), “courts across this state have concluded that a

delay in reporting allegations of sexual abuse does not necessarily indicate that a

conviction for the related offenses is against the manifest weight of the evidence.”

Id. at ¶ 55, citing State v. Bones, 2015-Ohio-784, ¶ 33-34 (2d Dist.); State v. Lykins,

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2019-Ohio-3316, ¶ 50 (4th Dist.); State v. Weaver, 2019-Ohio-2715, ¶ 8 (7th Dist.);

State v. Mathis, 2004-Ohio-2982, ¶¶ 25, 27 (8th Dist.).

{¶113} As for the testimony given by G.O., which directly established all

elements of the crimes at issue here, Graham points only to minor conflicting details

in support of his claim that her testimony was not credible. Moreover, the jury was

able to see, hear, and evaluate G.O.’s testimony and was free to believe or disbelieve

any or all of that testimony. State v. Williams, 2024-Ohio-2307, ¶ 27 (3d Dist.),

citing State v. Shockey, 2024-Ohio-296, ¶ 24 (3d Dist.).

{¶114} Finally, as to all three counts at issue, while Graham testified at trial

that the events testified to by G.O. never happened, “[a] verdict is not against

the manifest weight of the evidence because the [jury] chose to believe the State’s

witnesses rather than the defendant’s version of the events.” State v. Hooper, 2022-

Ohio-2990, ¶ 29 (3d Dist.).

{¶115} In summary, following this Court’s independent review of the record

and weighing of the evidence and all reasonable inferences therefrom, we conclude

that this is not the exceptional case where the evidence weighed heavily against

conviction, nor is there any indication that the jury lost its way in finding Graham

guilty of the three counts at issue here.

{¶116} The fourth assignment of error is overruled.

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Conclusion

{¶117} Having found error prejudicial to the defendant-appellant as assigned

and argued in the first claim presented in the first assignment of error, the judgment

of conviction and sentence entered in the Allen County Court of Common Pleas as

to Counts 2 through 9, inclusive, is reversed. Having found no error prejudicial to

the defendant-appellant as assigned and argued in the second claim presented in the

first assignment of error, or in the remaining assignments of error, the judgment of

conviction and sentence entered in the trial court as to the remaining counts of the

indictment is affirmed. The case is remanded for further proceedings consistent

with this opinion.

Judgment affirmed in part, Reversed in part, and Cause remanded.

ZIMMERMAN, P.J., and MILLER, J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, it is the judgment and

order of this Court that the judgment of the trial court is affirmed in part and reversed

in part with costs assessed equally between Appellant and Appellee for which

judgment is hereby rendered. The cause is hereby remanded to the trial court for

further proceedings and for execution of the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

Juergen A. Waldick, Judge

William R. Zimmerman, Judge

Mark C. Miller, Judge

DATED: /jlm

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